Summary
In Nelson, supra, this Court first remanded that case after agreeing with Nelson's argument that the circuit court's revocation order failed to meet Rule 27.6(f), Ala. R. Crim. P.
Summary of this case from Kelly v. StateOpinion
CR-18-1039
02-05-2021
Jamon Drekez NELSON v. STATE of Alabama
Aylia McKee, chief public defender, and Linda M. Braye, asst. public defender, Office of the Public Defender for the 15th Judicial Circuit, Montgomery, for appellant. Steve Marshall, att'y gen., and John J. Davis, asst. att'y gen., for appellee.
Aylia McKee, chief public defender, and Linda M. Braye, asst. public defender, Office of the Public Defender for the 15th Judicial Circuit, Montgomery, for appellant.
Steve Marshall, att'y gen., and John J. Davis, asst. att'y gen., for appellee.
Note from the reporter of decisions: On June 24, 2020, the Court of Criminal Appeals remanded the case by order.
McCOOL, Judge.
Jamon Drekez Nelson appeals the Montgomery Circuit Court's order revoking his probation. For the reasons set forth herein, we reverse and remand.
Facts and Procedural History
In 2013, Nelson pleaded guilty to two counts of first-degree robbery, violations of § 13A-8-41, Ala. Code 1975, and was sentenced to concurrent sentences of 20 years’ imprisonment, which the circuit court split for Nelson to serve 3 years’ imprisonment followed by 3 years of supervised probation.
Although there is no delinquency report in the record on appeal, it appears that Nelson's probation officer filed a delinquency report in 2018 alleging that Nelson had violated the conditions of his probation by "pick[ing] up new charges of receiving stolen property and possession of a controlled substance." (R. 6.) On June 27, 2019, the circuit court held a revocation hearing at which it heard testimony from, among other witnesses, Dustin Williams, an investigator with the Huntsville Police Department, and Jason Brightwell, a police officer with the Huntsville Police Department. Inv. Williams testified that he arrested Nelson in September 2018 for first-degree receipt of stolen property, a violation of § 13A-8-17, Ala. Code 1975, and he testified to the circumstances of the alleged offense. (R. 11-16.) Officer Brightwell testified that, during a traffic stop on a date not identified in the record, he arrested Nelson for unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala. Code 1975, after he discovered Xanax in Nelson's pocket during a "pat-down and a check for weapons." (R. 22.)
At the conclusion of the revocation hearing, the circuit-court judge stated: "Okay. Order of the Court, Mr. Nelson's probation is revoked and original sentence imposed." (R. 39.) On July 2, 2019, the circuit court entered an order that states:
"This cause came before the Court on June 27, 2019, on Motion of the State of Alabama to revoke the probation of the Defendant. The Court heard testimony, received arguments of counsel for the Defendant and the State of Alabama, and received the OFFICER'S REPORT ON DELINQUENT PROBATIONER submitted by the ALABAMA BOARD OF PARDONS AND PAROLES. After careful consideration, it is hereby ORDERED, ADJUDGED, AND DECREED that
"The Probation of the Defendant is revoked, and the original sentence placed into effect."
(C. 17; capitalization in original.) Nelson filed a timely notice of appeal.
On appeal, Nelson initially argued that the case was due to be remanded because, he said, the circuit court's revocation order failed to comply with Rule 27.6(f), Ala. R. Crim. P., which states: "The judge shall make a written statement or state for the record the evidence relied upon and the reasons for revoking probation." This Court agreed with Nelson's argument that the circuit court's order failed to comply with Rule 27.6(f) and, as a result, issued an order on June 24, 2020, remanding the case with instructions for the circuit court to enter a written order stating the court's reasons for revoking Nelson's probation and the evidence upon which the court relied.
In compliance with this Court's instructions, the circuit court entered an order on October 1, 2020, that states:
"Before this Court on MOTION TO REVOKE PROBATION, a hearing was held concerning the MOTION. At the hearing, testimony was taken ore tenus. Huntsville Police Officer Jason Brightwell testified about an arrest of this Defendant on a charge of theft of property in the first degree and possession of a controlled substance. One of the conditions of probation, among others, is that the defendant MAY NOT be arrested on a subsequent felony. The arrest of a felony while on probation is not a technical violation. As a result of the arrest, after careful consideration of the arguments of counsel, it is ORDERED, ADJUDGED, AND DECREED that:
"The probation of the Defendant is revoked and the original sentence is placed into effect."
Contrary to the findings in the circuit court's order, the evidence at the revocation hearing established that Nelson was arrested for first-degree receipt of stolen property, not first-degree theft of property, and it was Inv. Williams, not Officer Brightwell, who testified to Nelson's arrest for first-degree receipt of stolen property. However, those discrepancies are not relevant to our resolution of this appeal.
(Record on Return to Remand, C. 4; capitalization in original.)
Analysis
On return to remand, this Court allowed the parties to file supplemental briefs, and Nelson argues in his supplemental brief that the circuit court erred by revoking his probation solely on the basis that he was arrested for new offenses while on probation. We agree.
This Court addressed a similar issue in Allen v. State, 644 So. 2d 45 (Ala. Crim. App. 1994), in which the Limestone Circuit Court revoked Eric Allen's probation following a hearing at which the State presented evidence from which the circuit court found that Allen had violated the conditions of his probation by being charged with new criminal offenses. On appeal, Allen argued that the circuit court had failed to provide a sufficient reason for revoking his probation, and this Court agreed, noting that, although " ‘no final conviction of a probationer on the offense charged is required before his probation may be revoked,’ " Allen, 644 So. 2d at 46 (quoting Smith v. State, 445 So. 2d 573, 575 (Ala. Crim. App. 1984) ), a " ‘mere arrest’ or the filing of charges is an insufficient basis for revoking one's probation." Id. at 45-46 (quoting Roberson v. State, 572 So. 2d 1323, 1325 (Ala. Crim. App. 1990) ). Rather, this Court held, a circuit court must be " ‘reasonably satisfied ... of the truth of the charge’ " before it can revoke probation based on an allegation that the probationer has committed the new offense with which he or she was charged. Id. at 46 (quoting Smith, 445 So. 2d at 575 (emphasis added)). Thus, this Court reversed the order revoking Allen's probation because "[t]he record contain[ed] no statement by the trial judge that he was reasonably satisfied that [Allen] was guilty of the charged offenses" but, instead, "indicat[ed] that the trial judge considered the fact that [Allen] had been charged with an offense to be a sufficient basis for the revocation." Id. at 46 (emphasis added). See also T.D.M. v. State, 224 So. 3d 205 (Ala. Crim. App. 2016) (reversing an order revoking probation when the probationer admitted that he had been arrested for new offenses but denied that he had committed the new offenses); and Williford v. State, 329 So. 3d 86 (Ala. Crim. App. 2020) (holding that the probationer did not admit to a violation of her probation when she admitted only that she had been arrested for new offenses and denied that she had committed the new offenses).
Similarly, in this case the circuit court's October 1, 2020, order does not indicate that the court was reasonably satisfied that Nelson had committed the new offenses of first-degree receipt of stolen property and unlawful possession of a controlled substance. Rather, the circuit court's order clearly indicates that the court revoked Nelson's probation based solely on the fact that Nelson had been arrested for new offenses, which, as noted, is not a sufficient basis for revoking probation, Allen, supra -- a fact the State does not dispute. (State's supplemental brief at 6.) The fact that an arrest is not a sufficient basis for the revocation of probation is true even if probation is conditioned upon the probationer's not being arrested for new offenses, which the circuit court's order appears to indicate was a condition of Nelson's probation. See Calhoun v. State, 854 So. 2d 1209, 1210 (Ala. Crim. App. 2002) ("The trial court's original order of probation provided, in pertinent part: ‘The defendant's probation is conditioned on the defendant['s] complying with the following conditions of probation: [1] The defendant shall not be arrested for any further offenses.’ (Emphasis added.) Despite the language contained in the first condition, a mere arrest is an insufficient ground for revoking probation."). As this Court has noted:
" ‘If merely being arrested is sufficient for revocation of probation, then revocation would lie within the discretion of police officers rather than with judicial officers. In such a case, judges would only perform the ministerial duty of determining if an arrest had been made and then signing the revocation order. The decision to revoke probation is a judicial function and should be based upon the appellant's conduct and not upon an accusation only. The State must submit enough substantive evidence to reasonably satisfy the trier of the facts that a condition of probation was breached.’
" Hill v. State, 350 So. 2d 716, 718 (Ala. Crim. App. 1977)."
Calhoun, 854 So. 2d at 1210. Thus, because the circuit court did not find that it was reasonably satisfied that Nelson had committed the new offenses for which he had been arrested but, instead, revoked Nelson's probation based solely on the fact that Nelson had been arrested for those offenses, we reverse the circuit court's order revoking Nelson's probation.
We recognize the State's argument (1) that the record contains evidence that arguably establishes that Nelson did in fact commit the new offenses for which he was arrested and (2) that, as a result, this Court can conclude that the State presented sufficient evidence to support the revocation of Nelson's probation. (State supplemental brief at 6-7.) The problem with the State's argument, however, is that it was for the circuit court, not this Court, to consider the evidence and to determine whether it was reasonably satisfied that Nelson had committed the new offenses. See Calhoun, 854 So. 2d at 1210 (noting that the State " ‘must submit enough substantive evidence to reasonably satisfy the trier of the facts that a condition of probation was breached’ " (citation omitted; emphasis added); and Hunter v. State, 782 So. 2d 845, 846 (Ala. Crim. App. 2000) (" ‘Before revoking probation because the probationer has been arrested, the [circuit] court must be reasonably satisfied that the underlying charge against the probationer is true.’ " (citation omitted; emphasis added)). However, as we have already noted, the circuit court found only that Nelson had been arrested for new offenses and did not find that it was reasonably satisfied from the evidence that Nelson actually had committed the offenses. Thus, it is of no avail to the State on appeal that there was evidence from which the circuit court arguably could have made such a finding.
Because the circuit court mistakenly found that Nelson's arrests for new offenses were a sufficient basis in and of themselves upon which to revoke his probation, we reverse the circuit court's order revoking Nelson's probation and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Windom, P.J., and Kellum, Cole, and Minor, JJ., concur.